Argued: January 31, 2019
from the United States District Court for the District of
South Carolina, at Columbia. Terry L. Wooten, Senior District
Benjamin Neale Garner, OFFICE OF THE UNITED STATES ATTORNEY,
Columbia, South Carolina, for Appellant.
Daniell Stokes Landers, LANDERS LAW FIRM, Lexington, South
Carolina, for Appellee.
A. Lydon, United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Columbia, South Carolina, for Appellant.
AGEE and FLOYD, Circuit Judges and TRAXLER, Senior Circuit
Antwone Moore pleaded guilty to conspiracy to possess with
intent to distribute and to distribute cocaine and cocaine
base. Prior to his federal sentencing, Moore served seven
months in state prison for related conduct. At sentencing,
the district court reduced Moore's mandatory-minimum
sentence by seven months, over the government's
objection, to reflect Moore's discharged state sentence.
For the reasons set forth below, we reverse.
January 18, 2018, Travis Antwone Moore pleaded guilty to
conspiracy to possess with intent to distribute and to
distribute cocaine and cocaine base in violation of 21 U.S.C.
§§ 841(a)(1), 841(b)(1)(B), & 846. Because he
had a previous drug-related felony conviction, Moore was
subject to a mandatory-minimum sentence of ten years.
See 21 U.S.C. § 841(b)(1)(B) ("If any
person commits such a violation after a prior conviction for
a felony drug offense has become final, such person shall be
sentenced to a term of imprisonment which may not be less
than 10 years[.]" (emphasis added)). At sentencing,
Moore argued that he should receive a downward departure of
seven months from the ten-year mandatory-minimum sentence
because he had already served a seven-month sentence on state
charges for conduct relevant to his federal offense.
based his argument on U.S.S.G. § 5K2.23, which provides:
A downward departure may be appropriate if the defendant (1)
has completed serving a term of imprisonment; and (2)
subsection (b) of § 5G1.3 (Imposition of a Sentence on a
Defendant Subject to Undischarged Term of Imprisonment or
Anticipated Term of Imprisonment) would have provided an
adjustment had that completed term of imprisonment been
undischarged at the time of sentencing for the instant